Skip Ribbon Commands Skip to main content
Help (new window)
Navigate Up
Legal Services of New Jersey  Legal Services of New Jersey

Apply Online for Legal Help

During the COVID-19 pandemic the LSNJ Hotline will remain open during its normal business hours. Our Hotline staff will be working remotely and you may encounter delays when calling.


LEGAL TOPICS
Wills and Estates

Even if you have no property or assets (anything that could be turned into cash), it may be a good idea to have a will. In a will, you select an executor (a person to oversee your estate, pay your bills, and make funeral arrangements). You may state in your will that your executor may serve without buying a bond (a special license that must be purchased from the state). This may save money. You may also name a guardian for small children or appoint a trustee to manage any money you leave to them. This article explains how to prepare a will, what to do after you write a will, probating a will, what happens if you die without a will, and what estate and inheritance taxes your beneficiaries may have to pay.

How to Prepare a Will

Review your assets and liabilities. Before you prepare your will, you should review your assets and liabilities (outstanding expenses or debt) to know approximately what your estate (property) is worth. You should then decide how you want your property to be disposed of after you are gone. Generally, specific pieces of property or amounts of money are given to named family members, friends, or institutions, and then the remainder of the estate is given to a designated person or group of people. The people or institutions who receive property or money are called beneficiaries.

Identify probate property and non-probate property. Not all of your property can be disposed of by a will. Probate property can be disposed of by a will, but non-probate property cannot.

Non-probate property. Proceeds from life insurance policies and retirement plans are common forms of non-probate property. If you have life insurance or a retirement plan, you will have already named a beneficiary for those investments. When you die, these assets will go to the beneficiary you have named in the policy or plan, regardless of whether or not you have a will and what your will directs.

Probate property. Real estate, bank accounts, and securities held in your name alone are examples of probate property. You can direct how you want this property to be dealt with in your will. Real estate, bank accounts, and securities that you own jointly with someone else and that have a right of survivorship will go to the other surviving owner, regardless of what the will says. For example, in New Jersey, a husband and wife usually own their home as tenants by the entirety. This means that when one spouse dies, the home goes to the other. The same is true for domestic partners or civil union partners.

Name an executor. You should also name an executor in your will. The executor’s job is to make sure that your assets are properly disposed of. He or she must also make sure that all taxes are paid and other legal requirements are met. You may name a relative, a friend, or your lawyer as the executor of your will. The executor should be a responsible person you can trust, who is likely to be available when you die. Because handling the estate requires time, you might want to name someone who lives near you. You should also name a substitute executor in case something happens to the person named as executor.

Use a letter of instructions to dispose of minor items of property. You may choose not to include small items of personal property in your will. Instead of including these items in your will, you may list them in a letter of instructions to the executor. This will avoid having to change your will later if you change your mind about leaving someone a piece of personal property.

The Legal Requirements for Making a Will

Age. Anyone who is 18 years of age or older and of sound mind may make his or her own will. There is no requirement that an attorney write a will. (You can write your own will in your own handwriting.) But it is a good idea to have a lawyer prepare the document if your estate is large and if tax advice is necessary. A person not licensed as an attorney is not allowed to prepare a will for another person.

Witnesses. You and at least two witnesses must sign the will. Witnesses must be over the age of 18 and competent (of sound mind). You must sign the will with the witnesses watching and then the witnesses must sign. If you cannot sign your name, you may mark it with an X or have someone else sign it for you in your presence, but the witnesses must state on the document that even though you could not sign your name, they saw you sign an X or saw someone hold your hand while you signed.

While New Jersey law permits a beneficiary to witness a will, it is recommended that a beneficiary witness be used only when a non-beneficiary is not available, in order to avoid future challenges to the will.

Making it Easier to Prove that Your Will Is Valid

Witnesses. The purpose for having witnesses is so that they can testify that the will was properly prepared and signed when it is probated. (Probated means that the will has been filed with the Surrogate’s Court, and the Surrogate’s Court has found it to be genuine and legally acceptable.) If the will is found to be legally acceptable, it will be admitted to probate. If anyone with an interest in the will objects to the will being probated, he or she must file an objection in writing. This object is called a will contest. The will contest will be heard by a Superior Court judge in the probate part of the court.

Make the will self-proving. To avoid the need for witnesses to come and testify later about the validity of your will, you should make your will self-proving. To make a will self-proving, the person making the will (the testator) and the witnesses must each sign a self-proving affidavit that the testator is over 18, of sound mind, and voluntarily making the will. These statements must be signed before a notary public or an attorney. A will can be made self-proving either at the time it is written or any time after it is prepared.

Handwrite your will. If you handwrite your own will, it is called a holographic will. A holographic will does not have to meet all the formal requirements for a will. Although you do not need witnesses, it is a good idea to have two witnesses to make your document more credible. You may want to make this type of will if there is an emergency and you need to have a will prepared quickly. Otherwise, it is important that your will be properly prepared and signed. If it is not done as required by law, it will not be valid and your property will be distributed as if you did not have a will.

After Your Will is Written

Who should get a copy of your will? Give a copy of your will to your executor and to your attorney, if you have one. Keep the original copy in a safe place where it can be found upon your death. Your safe deposit box is a very good place to keep the original, or you may ask your executor to keep the original in his or her own safe deposit box so it will be easy to find after your death.

What should you do to change your will? You may change your will in several different ways. A will may be canceled by being destroyed or torn up. A will may also be canceled if you write a new will that is different from the first. The most recent will is the one that controls how the property is distributed.

What should you do to cancel your will? You may change your will without writing a new one by adding a codicil to your existing will. This is a provision stating the changes you want to make in the original will without including all the provisions that are still in effect. A codicil must be signed and witnessed in the same way as the will. The witnesses to the codicil do not have to be the same people. The codicil should then be kept with the will. Writing changes on the margins of the will is not the proper way to change a will. In fact, writing on the will may make all or parts of the will in valid. You should not write on the will or remove any of the staples or the binder holding the will together.

What happens if you have children after your will is written? Under New Jersey law, children born or adopted after a will is written will receive the share of the property that they would get if there were no will at all. There are special rules to guide the courts about what to do when a person dies without a will (dies intestate). See below for more information about what happens if a person dies intestate. If a child is not mentioned by name in a will, he or she may have to prove their relationship to the deceased in order to take a portion of the estate.

What happens if you leave property to someone who dies before you do? If someone you leave property to in your will dies before you do, the property he or she would have inherited may go to his or her descendants (children) unless you direct otherwise in the will. If there are no descendants, the property passes to the residuary legatee (the person named in the will who is to inherit the rest of the property after all designated property has been distributed). If there is no such person named, the leftover property will be divided up as though there had not been a will.

What are the rights of a spouse or domestic partner or civil union partner to the property of a deceased spouse or partner? A surviving spouse, domestic partner, or civil union partner has the right to take one-third of the augmented estate of the deceased partner or spouse regardless of what the will states. The rules on what is included and what is excluded in this augmented estate are complicated, and it is best to get legal advice to figure it out. For example, property you give away within a certain time period before your death may be considered part of your augmented estate.

If you do not provide for your spouse, domestic partner, or civil union partner in your will or leave less than one-third of your augmented estate to your spouse or partner, he or she may elect instead to take a one-third share of the augmented estate. This is true even if you intended to leave your spouse or partner out of your will or if you transferred property to him or her instead of providing for him or her in the will. However, if you are separated at the time you die, your spouse or partner will not be eligible for this elective share. If your domestic partnership, civil union, or marriage is dissolved or annulled, any provisions of your will giving property to your former partner or spouse are automatically canceled.

What Does It Mean to Probate a Will?

Probating a will is the process of having a court review it to make certain it has been properly prepared and is valid and legal. If the deceased appointed an executor in his or her will, that executor must apply to the Surrogate’s Court for probate of the will. Objections to the probate of a will may be filed by any party with an interest in the will.

What is the Surrogate’s Court? The Surrogate’s Court is a part of the New Jersey Superior Court system. It is an office that consists of a surrogate who is elected by the voters of the county for a five-year term, a special deputy surrogate, special probate clerks, and other employees who help the surrogate.

The Surrogate’s Court is both a separate “court” and an administrative office. The staff of the surrogate sometimes act as clerks for the Superior Court who accept the filing of legal documents for certain kinds of cases, such as adoptions, guardianships, etc. The Surrogate’s Court then schedules the necessary hearings before a Superior Court judge. The Surrogate’s Court handles the probating of wills in cases where there is no challenge to the will. If an interested party challenges a will, the surrogate must schedule the case for a hearing by a Superior Court judge. If a person dies without a will, the surrogate will issue what are called letters of administration. The surrogate will then appoint an administrator to distribute the property.

Many county surrogate offices now offer pamphlets describing what the surrogate does, along with the general process of estate administration. List of county surrogates (from the New Jersey Judiciary).

How to file an application with the surrogate. The application for probate of a will or for letters of administration is filed with the Surrogate’s Court in the county in which the decedent (dead person) was living at the time of death, unless the person was not living in New Jersey. (If they passed away in another state, the application is filed in the Surrogate’s Court of any county where the decedent had property.) The Surrogate’s Court may only perform routine and administrative functions. The Surrogate's Court may not get involved in any dispute. In cases where there is some sort of dispute, the New Jersey Superior Court, Chancery Division, Probate Part will resolve the matter. Any interested person must file a complaint with the New Jersey Superior Court, Chancery Division, Probate Part, by filing it with the surrogate in his or her capacity as deputy clerk of the Chancery Division, Probate Part.

If the Surrogate’s Court has already probated a will or issued letters of administration, any person who has a problem with the way the will is written, or has an objection to it, may file a complaint with the Chancery Division, Probate Part. The complaint should ask for a review of the Surrogate Court’s action. For copies of the forms used to (1) request copies of the surrogate’s records, or (2) file for a review of the probate of the will or other types of challenges to the will, visit the New Jersey Courts website.

What does the executor of a will do to get a will probated? Under New Jersey law, you must wait 10 full days after a death to probate a will. The executor of the will must post a bond with the Surrogate’s Court. However, when the executor is a friend or family member, the will may state that no bond is required. The executor must sign an affidavit stating that he or she will administer the estate according to law.

The executor then gives the surrogate a power of attorney. This allows the surrogate to accept court papers if someone sues the estate. The surrogate may then mail a copy of the papers to the executor at the address given in the power of attorney.

An executor serving under a will may sue and be sued as a personal representative of the decedent. If the decedent’s death was wrongfully caused by someone else, the executor may sue that other person.

Sometimes a will makes it necessary to appoint a trustee. For example, if money is left in trust for minor children with delivery of the money to be made when the children reach maturity, then someone else must take care of that trust until the children are adults. In such a case, the potential trustee must file a sworn, written acceptance of the trusteeship.Like the executor, the trustee must also give a power of attorney to the surrogate.

After all of the necessary steps have been completed, the Surrogate’s Court admits the will to probate and gives the executor documents known as letters testamentary, which authorize the executor to administer the estate.

After the Will is Probated

Notice of the probate. Within 60 days from the date that the will is probated, the executor must mail a copy of the will to all beneficiaries (people receiving property under the will). The executor must also mail notice to the decedent’s spouse, heirs, next of kin, and other beneficiaries. The notice must state the date and place of the probate of the will.

If the will gives property to a charity, a similar notice and copy of the will must also be sent to the attorney general of New Jersey.

Collecting property and paying debt. The executor is under an immediate duty to collect the property of the estate. The executor must also find out what debts the estate has and must pay the decedent’s debts out of the estate. Funeral expenses and administration expenses must be paid first before other debts. Administration expenses include lawyers’ fees and all costs reasonably incurred by the executor in administering the estate.

Limiting creditors of the estate. In order to find out how much debt the estate has and to settle the estate as soon as possible, the executor may get an order to limit creditors of the estate. This requires the executor to publish a notice to creditors in the local newspapers that they must present their claims to the executor within six months of the date of the order. The order must also be mailed to each creditor of the estate known to or ascertainable by the executor. A creditor’s claim must specify the amount claimed and the reason for the claim. If a claim is not presented within six months, the executor will not be liable to the creditor if there are insufficient assets to cover the claim.

Preparing and filing an income tax return for the estate. It is also the duty of the executor to prepare and file the last income tax return for the decedent. This return is due at the same time the decedent would have had to file had he or she lived. Generally, a joint return may be filed in the case of a married decedent for the year of his or her death.

Dying Without a Will

What happens if a person dies without a will? The estate of a person who dies without a will is called an intestate estate. A person who wants to take charge of settling the estate of someone who dies without a will must apply to the county surrogate to be appointed to be the Administrator of the intestate estate.

How is an estate administered when there is no will? In some counties, an application for administration of the estate of someone without a will (intestate) may be made at any time after death. In others, application may not be made until five full days after death. There is no need to wait the 10 days required for proceedings involving a will.

If the decedent was married, in a domestic partnership, or in a civil union, the spouse, domestic partner, or civil union partner has the first right to apply to the surrogate for letters of administration. If there is no surviving spouse, civil union partner, or domestic partner, the right to administer the estate then goes to the next of kin in order of degree.

A person applying to administer the estate must ensure that no other adult with an equal or greater right to administer the estate wants to be granted the letters of administration. If none of the heirs is willing to serve, then any other person may apply to become administrator.

If no one files for administration within 40 days after the death of the intestate person, the court may grant letters of administration to any fit person. Sometimes that person is the funeral director or other creditor or an attorney.

The application in an intestacy proceeding is almost identical to the application that is filed in a proceeding with a will. It is also necessary for an administrator to file a power of attorney with the Surrogate’s Court. Before letters of administration will be given, an administrator is required to sign an affidavit saying that he or she will perform the duties of administrator. The administrator is also required to give a bond as security for the benefit of creditors and relatives. The amount of the bond, in most cases, must cover all personal property. The amount or value of cash, jewelry, bank accounts, stocks, bonds, cars, etc. is considered in fixing the size of the bond.

How is property disposed of without a will? The procedures for distributing assets and terminating an estate when no will was left are essentially like those involving a will, except that the distribution of property is made according to New Jersey’s laws of intestacy.

What happens with small estates? If the total of all the real and personal property of an intestate person does not exceed $10,000 and there is a surviving spouse, civil union partner, or domestic partner, the spouse or civil union partner or domestic partner is entitled to all the assets free from the decedent’s debts, up to $5,000. In such a case, the spouse or civil union partner does not need to file for letters of administration. Instead, an affidavit maybe filed in Surrogate’s Court stating that the person is the surviving spouse, civil union partner, or domestic partner and that the real and personal assets are not worth more than $10,000.

The surviving spouse, civil union partner, or domestic partner will then have all the rights, powers, and duties of an administrator. The affidavit must also specifically identify all of the individual pieces of property, stating where they can be found and their value. It must also say where the decedent resided at the time of his or her death. The spouse, civil union partner, or domestic partner is entitled to take only the property listed. If additional property is discovered later and if the total exceeds $10,000, an application for letters of administration must then be made.

If there is no surviving spouse, civil union partner, or domestic partner and the estate is worth $5,000 or less, the next of kin may follow this same procedure. However, in this case the decedent’s assets are distributed to all next of kin and creditors.

Federal and State Estate Taxes and Inheritance Tax

Federal estate taxes. Federal law imposes an estate tax on estates over a certain value. Right now, there is no federal estate tax imposed on a surviving spouse. (This federal tax probably does not apply to a surviving civil union partner or domestic partner.) In most cases, there will be no tax due and a federal estate tax return will not need to be filed. Deductions and credits may reduce the taxable estate below the level at which a tax must be paid. If you are the executor of an estate, it is best to consult with a tax professional or an attorney about how to pay any taxes that might be owed.

New Jersey estate taxes. New Jersey imposes an estate tax on estates in excess of $675,000. There may be exemptions and credits that will reduce what you must pay, but it is best to consult with a tax professional or an attorney to make certain that you are complying with the law. There are also tax waivers that may be filed.

State inheritance taxes. The New Jersey Transfer Inheritance Tax is imposed on the transfer of real and personal property valued at more than $500. Unlike federal estate tax, the New Jersey inheritance tax is imposed on the value of the property transferred, not on the value of the estate. This tax applies to property transferred at death by will or under the laws of intestacy. Under certain circumstances, this tax may also apply to property transferred by the decedent by deed, sale, or gift within three years before the decedent’s death. The amount of the inheritance tax depends upon the value of the property transferred and the relationship of the property’s transferee (recipient) to the decedent. Transfer to Class A beneficiaries, including spouses, children, parents, grandparents, and grandchildren, are tax exempt. Transfers to other beneficiaries are taxed at rates from 11 to 16 percent.

Tax returns. Formal tax returns are due eight months after the decedent’s death. If the inheritance tax is not paid within eight months, interest will accrue and no tax waivers will be issued until payment is received. Forms for filing the Inheritance Tax Return can be obtained from the The Division of Taxation, Individual Tax Audit Branch, Inheritance and Estate Tax, Attention: Estate Tax Section, P.O. Box 249, Trenton, New Jersey 08695-0249. You may also call (609) 292-5033 or visit the New Jersey Division of Taxation's Inheritance and Estate Taxes page.

 

This article is from the May 2012 issue of Looking Out for Your Legal Rights®. 

6/22/2012
× Say Their Names